"Bamboozle"
originally a slang or cant word, perhaps Scottish
from bombaze: "perplex,"
or Fr. embabuiner: "to make a fool
(baboon) of" (Online Etymology Dictionary);
"to deceive or get the better of (someone) by
trickery, flattery, or the like; hoodwink;
to practice trickery or deception (Random House Dictionary).
This Blog is one citizen's attempt to speak forthrightly
and to question those who
would bombastically deceive
and mislead the public.

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Thursday, May 21, 2015

SCOTUS and the NEW JIM CROW

“This is a book you must read!” Many of you have probably already read it,
as have I – several times! It’s been in print since February of 2010, and has
become something of a guidebook to a new movement concerned with the reform of
the entire justice system. Its Title: “The New Jim Crow: Mass Incarceration in
the Age of Colorblindness,” by Michelle Alexander.

We have been talking about
a portion of that justice system in the last two posts, and now it is important
to bring to the foreground what it is about that system that keeps in place an
overarching control and denigration of people of color. In spite of the
election of the first African-American President of the United States, the
system has not changed and will not change until more people of all races are
made aware of the controls, the obstacles and the laws that keep certain people
in an underclass; what Michele Alexander calls a racial caste system or undercaste.

But first, let Alexander herself set the scene. She tells a short story of
several generations of Black men of one family, all born in the United States,
who have all been denied the right to vote, starting with the great, great
grandfather of Jarvious Cotton who could not vote because he was a slave;
“denied the most basic freedom that democracy promises” in our Constitution. His
great-grandfather was beaten to death by the Ku Klux Klan for attempting to
vote. His grandfather was prevented from voting by Klan intimidation. His
father was barred from voting by poll taxes and literacy tests. Jarvious Cotton
cannot vote because he, like many black men in the U.S., has been labeled a
felon and is currently on parole.

Alexander presents her conclusion of what
the Cotton story represents. “In each generation, new tactics have been used
for achieving the same goals. The arguments and rationalizations that have been
trotted out in support of racial exclusion and discrimination in its various
forms have changed and evolved but the outcome has remained largely the
same…legally barred from voting…throughout most of American history…subject to
legalized discrimination in employment, housing, education, public benefits, and
jury service just as their parents, grandparents and great-grandparents once
were. Once you’re labeled a felon, the old forms of discrimination…are suddenly
legal. As a criminal, you have scarcely more rights, and arguably less respect,
than a black man living in Alabama at the height of Jim Crow. We have not ended
racial caste in America, we have merely redesigned it.”

Since most Americans
are reluctant to talk about caste and would insist that America has no such
thing, Alexander provides a definition of what she means by racial caste—she
uses it “to denote a stigmatized racial group locked into an inferior position
by law and custom.” She says, “Jim Crow and slavery were caste systems. So is
our current system of mass incarceration.” The term mass incarceration refers
“not only to the criminal justice system but also to the larger web of laws,
rules, policies and customs that control those labeled criminals both in and out
of prison.” There is, whether we recognize it or not, a hidden world of
legalized “discrimination and permanent social exclusion” applied to members of
America’s new undercaste. She came to see that mass incarceration in the United
States had, in fact, emerged "as a stunningly comprehensive and well-disguised
system of racialized social control that functions in a manner strikingly
similar to Jim Crow.”

At this point, we could venture off in a number of
directions. But, one of the items that most caught my attention in the book was
how the federal court system has effectively “immunized” the current justice
system from challenges on grounds of racial bias and racial profiling which
clearly relates to what I have been discussing in the last two posts about
policing. What follows is a partial summary of what the federal court system
has done to legalize a system of controls that essentially increase the
likelihood that more black men will be incarcerated (or even killed) at the
hands of our justice system. Thisisnot afantasy.

“The racial dimension of
incarceration is its most striking feature. No other country in the world
imprisons so many of its racial or ethnic minorities. The United States
imprisons a larger percentage of its black population than South Africa did at
the height of apartheid. It is estimated that three out of four young black men
(in Washington DC’s poorest neighborhoods) can expect to serve time in prison.
Similar rates of incarceration can be found in black communities across
America. These stark racial disparities cannot be explained by rates of drug
crime. Studies shows that people of all colors use and sell drugs at remarkably
similar rates. Surveys have found that whites, particularly white youth, are
more likely to engage in drug crime than people of color. That is not what one
would guess when entering our nation’s prisons and jails which are overflowing
with black and brown drug offenders, admitted to prison on drug charges at rates
twenty to fifty times greater than those of white men.”

Further, even though
crime rates continue to decline in our time, and have dipped below the
international norm, the US incarceration rate has quadrupled. The US now boasts
an incarceration rate that is six to ten times greater than that of other
industrialized nations – a development directly traceable to the War on Drugs.
“The stark and sobering reality is that, for reasons largely unrelated to actual
crime trends, the American penal system has emerged as a system of social
control unparalleled in world history.”

One cannot help but ask what is
causing this horrendous turnabout when just a few decades ago, academics and
criminologists were calling for a moratorium on prison construction? In 1972
there were fewer than 350,000 people in prisons and today there are more than 2
million, even as crime rates decline. If current trends continue, one in three
young African American men will end up under the control of the corrections
system, including prisons, probation or parole.

Disturbingly, it is
well-documented that the judicial system is behind much of this mass
incarceration. Decisions that have been made in our courts have exacerbated the
racial underpinnings of the War on Drugs so that basic rights and protections
are being denied our young men of color in ways that make this a preeminent
civil rights issue and not just an issue of lingering racial bias showing up in
a few people. We are dealing here with institutional racism in its most
pernicious form – the use of law and policy, standards and customs to create a
system of racial control that is mostly invisible to the average citizen, but
one that ensures the subordinate status of a group defined largely by race.

Here’s how that happens: how legal rules and rulings can guarantee
discriminatory results, or as Alexander describes it – how a colorblind criminal
justice system achieves such racially discriminatory results. She makes a very
strong point that the Supreme Court, “when it came time to devise rules for the
War on Drugs, adopted rules that would maximize – not minimize – the amount of
racial discrimination that would likely occur.”

She describes the process as
having two stages; I’m going to describe it in four phases:

1) The
Round-up: stop, search, arrest. In their decision in Whren vs. United States,
“the [Supreme] Court held that police officers are free to use minor traffic
violations as an excuse to stop motorists for drug investigation, even when
there is no evidence whatsoever that the motorist has engaged in drug crime.”
So long as a minor traffic violation can actually be identified – such as
failing to signal, exceeding the speed limit by a mile or two an hour, tracking
improperly between the lines, or having a non-working light – police are free to
stop motorists and then go fishing for drugs. That kind of police conduct, said
the Court, does not violate the 4th Amendment ban on “unreasonable searches and
seizures.”

The petitioners argued that granting police such broad
discretion to investigate virtually anyone for drug crimes, “created a high risk
that police would exercise this discretion in a racially discriminatory
manner.” They called for the Court to prohibit police from stopping motorists
unless the police had reason to believe the motorist was committing or had
committed an actual drug crime. The Court not only rejected that argument, but
went a step further and ruled that claims of racial bias could not be brought
under the 4th Amendment.

The Court effectively barred any victim of
race discrimination from even alleging a claim of racial bias because whether or
not police discriminate on basis of race when making these stops is irrelevant
to whether their conduct was reasonable under the 4th Amendment. The Court left
one bread crumb for the petitioner and said that victims of race discrimination
could still bring a claim under the 14th Amendment which guarantees “equal
treatment under the laws.” Unfortunately, the Court has also made it “virtually
impossible to challenge racial bias in the criminal justice system under the
14th Amendment, and has barred litigation of such claims under federal civil
rights laws as well.”

Because "stop and frisk" has become so well known
to New Yorkers especially, I have chosen not to go into detail on this issue.
But it needs to be said that such stops are as discriminatory as those for
traffic violations, and perhaps more so. Consider this one thought: why do the
police constantly patrol low-income, inner city areas, while no such activity
exists in the mainly white suburbs of this country? The usual retort is that
such city areas are “high crime areas” which simply ignores an equivalent amount of
drug crime in the suburbs, and that most crack users are white. "Stop and
frisk" in high crime areas is simply equivalent to targeted harassment and
arrest of black and brown men, based on racial profiling and stereotyping, all
of which has been underwritten and supported by judicial decisions such as
Armstrong v. United States. Read the book.

2) Prosecution and plea
bargaining. Prosecutors have more power than just about anyone in the justice
system. Few rules constrain the exercise of their prosecutorial discretion.
They can dismiss a case for any reason; they are free to file more charges
against a defendant than can realistically be proven; they can offer just about
anything as a plea bargain. They can even transfer drug defendants to the
federal system where penalties are much more severe, or transfer juvenile
offenders to an adult court from which they can be sent to an adult prison. In
fact, there is no manual to follow, and their decisions are totally
discretionary and virtually unreviewable. And, the Supreme Court has little
interest in assuring that prosecutors perform this extraordinary discretion in a
way that is fair and nondiscriminatory.

Did you have any idea that "nearly
all criminal cases are resolved through plea bargaining?" Essentially a guilty
plea is elicited from the defendant in exchange for some form of leniency by the
prosecutor. "Never before in our history...have such an extraordinary number of
people felt compelled to plead guilty, even if they are innocent, simply because
the punishment for the minor, nonviolent offense with which they have been
charged is so unbelievably severe." Choosing "only" three years in prison as
compared to going to trial and maybe getting five, ten, or twenty years - even
life imprisonment - does not leave the defendant much choice. The prosecutor's
ability to "pump up" the volume of charges also comes into play here.
"Prosecutors admit that they routinely charge people with crimes for which they
technically have probable cause, but which they seriously doubt they could ever
win in court."

But prosecutors carry this a step further. As part of the
plea bargain, they can also obtain testimony for related cases, encouraging
people to snitch on others in return for leniency, often by presenting false
testimony. "In fact, under the federal sentencing guidelines, providing
'substantial assistance' is often the only way defendants can hope to obtain a
sentence below the mandatory minimum." And guess what? "The U.S. Sentencing
Commission itself has noted that the 'value of a mandatory minimum sentence lies
not in its imposition, but in its value as a bargaining chip..."

The
critical point," according to Alexander, "is that thousands of people are swept
into the criminal justice system every year pursuant to the drug war without
much regard for their guilt or innocence. The police are allowed by the courts
to conduct fishing expeditions for drugs on streets and freeways based on
nothing more than a hunch. Homes may be searched for drugs based on a tip from
an unreliable, confidential informant who is trading the information for money
or to escape prison time. And once swept inside the system, people are often
denied attorneys or meaningful representation and pressured into plea bargains
by the threat of unbelievably harsh sentences. This is the way the roundup
works, and it works this way in virtually every major city in the United
States."

3) Sentencing. The concept of mandatory sentencing for
certain crimes is probably pretty well known, but did you know that harsh
mandatory minimum sentences have been consistently upheld by the U.S. Supreme
Court? "In 1982, the Supreme Court upheld forty years of imprisonment for
possession and an attempt to sell 9 ounces of marijuana. Several years later,
in Harmelin v. Michigan, the Court upheld a sentence of life imprisonment for a
defendant with no prior convictions who attempted to sell 672 grams
(approximately 23 ounces) of crack cocaine." The Court said that the sentences
imposed were 'reasonably proportionate' to the offenses committed, but were not
'cruel and unusual' in violation of the 8th Amendment. Interesting fact: prior
to the Drug Reform Act of 1986, the longest sentence ever imposed for possession
of a drug was one year! "A life sentence for a first-time drug offense is
unheard of in the rest of the developed world."

Perhaps the most famous
Supreme Court case upholding mandatory minimum sentences is Lockyer v. Andrade.
In that case, the Court rejected constitutional challenges to sentences of 25
years without parole in the case of some rather minor examples of stealing.
Since this decision was pursuant to the three-strike law in California, the
Court in essence gave other states the green light to pass such laws. These
mandatory sentencing laws are often justified as necessary to keep "violent
criminals" off the streets, but those penalties are imposed most often against
those who are found guilty of nonviolent crimes, often involving drug-related
crimes. What we have here is an absurdity. Even Justice Souter in dissenting to
the majority opinion in Andrade retorted, "If Andrade's sentence [for stealing
videotapes] is not grossly disproportionate, the principle has no meaning."

The point is: this is a prime example of how a constitutional principle can
become meaningless for protecting a minority from the tyranny of a majority.
Most of those subject to harsh mandatory sentences in the federal system are
drug offenders - low-level dealers, not 'king-pins.' And, once again, the
largest numbers of offenders corralled into the justice system are black men.
Ergo: the Court established one more institutionalized way to control and divest
black and brown men of any right to redress of their biased treatment.

According to Alexander, when media hysteria was at fever pitch regarding
black drug crime in 1987, and evening news was saturated with images of black
criminals shackled in courtrooms, the Supreme Court went all out in McCleskey v.
Kemp to declare that racial bias in sentencing, even if shown through credible
statistical evidence, could not be challenged under the 14th Amendment “in the
absence of clear evidence of conscious, discriminatory intent.” It became clear
that the Supreme Court would tolerate racial bias in the criminal justice system
as a whole, so long as no one admitted it. The petitioner used the well-known
report of great disparity in the execution of black defendants who killed white
victims as distinguished from whites who killed black persons. According to
Alexander, the statistical evidence of discrimination in the Baldus Report was
the strongest ever presented to a court regarding race and criminal sentencing.
By a one-vote margin, the Court rejected McCleskey’s claims under the 14th
Amendment, claiming that he had not proven that the prosecutor in his case had
sought the death penalty because of race or that the jury had imposed the death
sentence for racial reasons, and that statistical evidence of “patterns” did not
prove unequal treatment under the law.

Her conclusion: “In erecting this high
standard, the Court knew full well that the standard could not be met absent an
admission from a prosecutor or judge that they acted because of racial bias.”
Moreover, the evidence of deliberate bias in an individual case would almost
always be unavailable or inadmissible due to procedural rules that shield jurors
and prosecutors from such scrutiny. Of little concern to them, the Court
“closed the Courthouse door to claims of racial bias in sentencing.” At the end
of the majority opinion, the Court stated that “discretion” plays a necessary
role in the implementation of the justice system, and that “discrimination is an
inevitable by-product of discretion.” Apparently, the conclusion of the Court
is that racial discrimination must simply be tolerated as a necessary part of
the entire judicial system!

Following McCleskey, the claim that disparity in
sentencing for those found guilty of using or selling powdered cocaine versus
crack cocaine was racially based got nowhere, and lower courts consistently
rejected claims of racial discrimination in the absence of explicit evidence of
such. Few challenges to sentencing schemes, patterns or results have been
brought since McCleskey because it is a futile exercise. In 1995, some brave
lawyers challenged Georgia’s two strikes and you’re out sentencing scheme –
98.4% of those serving life sentences under this provision were black. The
Georgia Supreme Court ruled that a case of discrimination had been made and
directed prosecutors to offer a race neutral explanation for the results.
Instead, the Georgia Attorney General filed a petition for rehearing the case,
which was also signed by all the district attorneys in the state who happened to
be white. Thirteen days later, the Georgia Supreme Court reversed itself basing
its decision on McCleskey v. Kemp.

“To date, not a single successful
challenge has ever been made to racial bias in sentencing under McCleskey v.
Kemp anywhere in the United States.”

4) Release: restrictions &
prohibitions. "Once a person is labeled a 'felon', he or she is ushered into a
parallel universe in which discrimination, stigma, and exclusion are perfectly
legal, and privileges of citizenship are off-limits. It does not matter whether
you have spent time in prison; your second-class citizenship begins the moment
you are branded a felon." Let us count the ways:

barred from public housing
by law

discriminated against by private landlords

ineligible for food
stamps

forced to "check the box" indicating a felony conviction for nearly
any job application

denied licenses for a broad range of
professions

locked out of the mainstream society and economy on a permanent
basis

regular surveillance and monitoring by the police

governed by
additional rules on travel and behavior (such as association with other
felons)

paying fines and meeting with probation (or parole) officers - miss a
meeting and one might be arrested

failing to cope well with one's exile
status

Unable to cope with the stigma of "felon" and their permanent pariah
status, most end up back in prison. According to Alexander: "Unless the number
of people who are labeled felons is dramatically reduced, and unless the laws
and policies that keep ex-offenders marginalized from mainstream society and
economy are eliminated, the system will continue to create and maintain an
enormous undercaste."

﻿

Throughout our history, the Supreme Court has been
depended upon to protect and defend the rights and freedoms of the American
people. At times, they have succeeded brilliantly. But, at other times, they
have been the instigators and the proponents of interpretations of our
Constitution that have not only bordered on the absurd, but have undermined
certain cherished concepts and foundational principles of democracy and justice
to an extent that has further weakened our fragile representative democracy.

As Michelle Alexander has shown, and as I have tried to summarize and
illuminate, the Supreme Court decisions since the early 1980's have helped to
reinforce a structure of bias and profound discrimination against persons of
color (without ever addressing race as an issue), such that our system of
justice has become a bastion of social control over African Americans, in
particular. Just as the Court did with Citizens United, turning freedom of
speech into acceptable political bribery, so they have turned amendments to protect rights
and freedoms - such as search & seizure, cruel & unusual punishment, and
equal protection under the law - into vehicles for outright discrimination
against and control of, a minority population.

Virtually all
constitutionally protected civil rights have been undermined by the so-called
War on Drugs. For example, it was not too long ago that the police could not
stop and search someone without a warrant unless there was 'probable cause' to
believe that the individual was engaged in some criminal activity - a basic 4th
Amendment principle. That is no longer true in our society due to decisions of
the Supreme Court beginning with a modification in Terry v. Ohio in 1968 known
as the 'stop and frisk' rule. Justice Douglas in his dissent on Terry warned
that "granting police greater power than a magistrate [judge] is to take a long
step down the totalitarian path." This is what communities populated mainly by
people of color put up with every day: an abrogation of their rights and
freedoms and a growing control over their opportunities and social welfare - all
with a legal base to support such actions.

We have been remiss in believing
that courts are somehow sacrosanct. They are not. And they deserve now a
retribution that has long been lacking on the American scene: they deserve our
contempt for allowing institutional racism to flourish in our justice system.
The dirty little secrets of their decisions need to be displayed for all to see
for they have actually granted or approved:

a license to discriminate to
police,

a license to deceive and manipulate offenders for
prosecutors,

the right to reject applicants to employers and housing
authorities.

mandatory drug testing for employees and students;

random
searches and sweeps of public schools and students,

police obtaining search
warrants based on anonymous tips;

expanded government wiretapping
authority,

the use of paid unidentified informants by police and prosecutors,

the use of helicopter surveillance of homes without a warrant,

the
forfeiture of cash, homes, and other property based on unproven allegations of
illegal drug activity.

As Michelle Alexander says: "These new legal
rules have ensured that anyone, virtually anywhere, for any reason, can become a
target of drug-law enforcement activity." And that is exactly what Justice
Douglas was talking about when he used the word 'totalitarian.' Our
revolutionary forefathers, mothers, brothers and sisters knew exactly what that word
meant as British soldiers daily committed such atrocities against their persons
and their property. That is why they were careful to restrict armed forces of
all kinds from invasion of our lives and homes, spelled out in our
Constitution.

It is past time for progressives to demand that our justice
system - including police forces, prosecutor's offices, courts, prisons,
probation and parole offices, and all its concomitant policies and actions -- be
reviewed, disciplined, reformed and overseen from here on out. Because we have
neglected the flaws of this system for far too long, the system has not only
turned its back on us, but it has created a totalitarian monster that is already
devouring men of color by mass incarceration, and that can devour any of us at
any time, both collectively and individually. Please read the book, because no
one can do it justice in a partial summary!